A provincial government employee who posted thinly-veiled derogatory descriptions and criticisms of her co-workers and supervisors on several online blogs that she created was justifiably dismissed because this conduct irreparably undermined the employment relationship, an Alberta arbitration board has held. In upholding the dismissal, the board took into account both the hurtful nature of the comments and the employee's belligerent reaction and lack of remorse when she was confronted by management with the blog contents.

The Facts:

Acting on the advice of a doctor who told her that it would help her cope with stresses caused by her father's illness and subsequent death if she started writing down her feelings, the grievor, an administrative employee in a department of the Alberta government, decided that a good way to do this was to take up blogging. In March 2006, she started up a blog called "Running Girl," named for the fact that she had also recently taken up running, and another one called "Gossiping."

The Running Girl blog identified the grievor by name (which was not provided in the present decision) and indicated that she lived in Edmonton; one of her postings stated that she worked for a department of the Alberta government. While much of the content of this blog dealt with personal matters, some of it was work-related. The department in which she worked handled sensitive files regarding members of the public that required confidentiality, discretion, and judgment on the part of employees. The department's values, which were well publicized internally, included respect, cooperation, and teamwork. The employee's job involved liaising with members of the public, and the required interpersonal skills listed in her job description were "superior teamwork, discretion, sound judgment, and abundant common sense."

On March 31, 2006, the employee posted on this blog an entry entitled "Aliens Around the Coffee Table" in which she made comments about six of her co-workers who regularly met for coffee in the workplace coffee room. Although she wrote that "[n]aturally I'll give them each an alias to protect their privacy," people in the Edmonton office were easily able to identify the individuals who were being described.

About one co-worker, for example, she wrote in this posting, "Roberta likes to talk – unfortunately she's menopausal – she might have short term memory problems – always forgets the people's names she's talking about, or the point of her story, or the ending…. If I had to choose a planet that she came from, I'd say it was some dark planet, with very little oxygen." She described another by writing, "He's a pleasant fellow .... always polite and very well dressed. He's somewhere in his 40's, never married and will house sit for any of the people in the office who have a great address…. He also spins records at ... an alternative lifestyle bar downtown. ..... I'm gonna go out on a limb here and say he's from a planet in our solar system – Uranus."

On April 11, 2006, complaining about an administrative change, she posted an entry entitled "SNAFU – Situation Normal, All F .... Up" (that was how the heading was written), in which she wrote that "I work in a lunatic asylum. Nurse Ratched (aka, the supervisor) just sent the following e-mail to her staff;" she reproduced the memo, and then asked, "Does anyone else out there live in a world like mine with imbeciles and idiot savants (no offense to them) running the ship .... and is anyone else's ship being sailed down the highway to hell?" Other postings on this blog and on the other one were in a similar vein, complaining about or mocking co-workers and supervisors, and sometimes discussing inner workings of her department.

In early July 2006, the blogs were brought to management's attention by other employees, and after a review of the matter, the employee was summoned, accompanied by a union representative, to a meeting with departmental managers. Presented with hard-copy printouts of 74 pages of entries from her blog and invited to explain her conduct, the employee adopted an aggressive attitude, strongly defending her right to make the comments published in her blogs and making remarks such as "it's none of your business," "I have freedom of speech," and "is there a law?." She insisted that she had attempted to be humorous, that most people found it funny, and that there was nothing offensive about what she had written, partly because she had removed people's names.

On July 17, 2006, following this meeting, the employee was dismissed in a letter stating that "your actions … fundamentally undermine the employment relationship and contravene the Code of Conduct and Ethics of the Alberta Public Service. Your actions have caused irreparable damage to the employment relationship. In addition, there is potential to damage the employer's reputation." She grieved the dismissal.

The Arguments:

Before an arbitration board, the union argued that there were insufficient grounds to support discharge. It objected that the employer could not claim insubordination, since this was not mentioned in the dismissal letter. It denied that the grievor had been unremorseful, since she acknowledged that some of the postings may have been hurtful, and it argued that the employer had exaggerated the harm caused by the blogging. Finally, the union pointed to a number of mitigating factors, including a previously unblemished record of six years' service in the department, and lack of any intention on the employee's part to hurt people. It sought reinstatement with appropriate compensation.

The employer replied that the contents of the grievor's blog postings, her lack of remorse, and her lack of understanding as to why her blog had been so offensive had undermined the employment relationship irreparably, justifying her dismissal. It pointed in particular to the "SNAFU" posting which referred to management as imbeciles and idiot savants and her supervisor as Nurse Ratched and lunatic-in-charge, arguing that these comments were so insubordinate, insolent, and contemptuous of management as to justify severe discipline. Moreover, the employer submitted, the grievor had violated confidentiality expectations in many of her postings, and her comments about her co-workers had been so hurtful, mean-spirited, derogatory, and insulting that it would be very unfair to these co-workers to reinstate her. Finally, the employer maintained that she had shown no real remorse. [Editors' Note: Nurse Mildred Ratched figures as the villain in the novel/film, "One Flew Over The Cuckoo's Nest." A cold, sadistic, tyrant, she has become the stereotype of the workplace bully.]

The Decision:

Finding that "the [grievor], in expressing contempt for her managers, ridiculing her co-workers, and denigrating administrative processes, engaged in serious misconduct that irreparably severed the employment relationship, justifying discharge," the arbitration board dismissed the grievance.

Writing the majority (2-1) decision of the three-member board, Arbitrator Allen Ponak began by noting that "[w]hile the grievor has a right to create personal blogs and is entitled to her opinions about the people with whom she works, publicly displaying those opinions may have consequences within an employment relationship." He observed that "the tone of her blogs placed them very much in the public arena and suggested that the grievor relished addressing a wider audience."

Ponak wrote:

That a blog is a form of public expression is, or ought to be, self-evident. Unless steps are taken to prevent access, a blog is readable by anyone in the world with access to the internet. The grievor took no steps to prevent access. On the contrary, the tone of her blogs placed them very much in the public arena and suggested that the grievor relished addressing a wider audience. In one posting (Exhibit 13), she specifically invited others to write in and insult people they did not like. In another posting (Exhibit 12), after venomously caricaturing her colleagues, the grievor warned that those not mentioned in this posting could be next. She used her own name in one of her blogs and disclosed that she worked for the provincial government in Edmonton. The Board rejects any professed ignorance on the grievor’s part of the public dimension of her blog.

Ponak determined that "[t]he contents of the grievor's one-page SNAFU posting are insulting and contemptuous of her supervisors and those managing the Department…. These comments can only be characterized as insolent and insubordinate, even though they were not accompanied by a refusal to carry out an order or perform her assigned duties." He rejected the union's contention that insubordination was improperly raised for the first time by the employer at the arbitration hearing as a ground for dismissal, holding that since the dismissal letter clearly stated that the employee's actions related to the blogs had destroyed the employment relationship, "[t]his placed the contents of the blogs squarely in front of the Board" and "[i]n the case of the SNAFU posting, the Board concludes that it is insolent and insubordinate."

Ponak considered, however, that "[m]ore damaging to the viability of the employment relationship are the grievor's blog postings about her co-workers." He concluded that "[t]he material contained in the blogs [is] inherently destructive to workplace relationships and inimical to the normal expectations of respect and dignity to which people are entitled when they come to work. The Board shares the feelings of betrayal and invasion expressed by those targeted by [the grievor's] blogs. Her public ridicule of colleagues was abhorrent and has no place in a work setting. Placing the grievor back into this relatively small workplace would be a further offense to the victims of the grievor's blogs." Finding as well that the employee had shown no genuine remorse – she had made "tepid apologies, at best" (and none to the individuals she had insulted) – Arbitrator Ponak noted that she demonstrated little awareness of the hurt she had caused, and "still did not quite understand what all the fuss was about." He concluded on behalf of the majority of the board that the employer had just cause to dismiss the grievor and that this was not "a case in which the board should exercise its discretion to reduce the penalty."

Comment:

In his award, Arbitrator Ponak commented that blogging is such a new phenomenon that the parties were able to find only one previous arbitration award that dealt with dismissal for comments that an employee had posted on a blog. That case was National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 v. Chatham-Kent (Municipality), [2007] O.L.A.A. No. 135 (QL), in which an employee of a nursing home was fired for derogatory comments about management, co-workers and patients.

In Chatham-Kent, Arbitrator David Williamson dismissed the grievance, holding that "the conclusion that must be reached … is that by her actions [the grievor] has provided the employer with just cause to impose discipline on a number of grounds…. First, by a breach of the confidentiality agreement and disclosing residents' personal information on a blog accessible to the public. Second, by making insubordinate remarks about management, work procedures, management decisions, and the general running of the Home and placing these on a blog available to members of the public. Third, that the nature of her comments, their hostility, and the language used to express them, demonstrated a disregard for residents' need for care, and that this was conduct unbefitting a Personal Care Giver in a Home for the Aged, as well as it being inappropriate for her to make the critical comments that she did on a public blog about some of her fellow employees."

The present decision, as well as Chatham-Kent, underscore the dangers inherent in blogging about workplace-related matters without careful consideration of the possible consequences. They make it clear that employees cannot simply invoke free speech to publicly make derogatory comments online about co-workers, management or the employer or to breach confidentiality about internal matters, and that an employer can impose appropriate penalties up to and including dismissal for such misconduct.

Alberta Grievance Arbitration

Allen Ponak

April 11, 2008

View the full text of the decision in Alberta Union of Provincial Employees v. Alberta.